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Interpret Act in its entirety

Tuesday, 23 October 2007 07:36am

©The Star (Used by permission)
by Marianne Laiw Sook Huei, Kuala Lumpur

I READ with interest, Tun Hanif Omar’s article, “A Matter of Interpretation” (Sunday Star, Oct 21).

Hanif highlighted two methods of statutory interpretation that may be applied in construing the meaning of Article 125(1) of the Federal Constitution regarding the extension of the tenure of the Chief Justice.

The issue here is whether or not it is the Yang di-Pertuan Agong’s prerogative to extend the Chief Justice’s tenure after his retirement without the advice of the Prime Minister.

As a first year law student, I have been studying the rules of statutory interpretation for my up-coming examination, and admittedly, my level of knowledge is very limited. However, I would like to give my humble opinion to the issue.

While if one were to apply the literal rule (which involves looking at the words of a statute and giving them their plain, grammatical and ordinary meaning) to the phrase “as the Yang di-Pertuan Agong may approve” to Article 125(1) of the Federal Constitution, it would seem that the Yang di-Pertuan Agong does indeed have the prerogative to extend the tenure of the Chief Justice after his retirement without the advice of the Prime Minister.

And Karpal Singh’s suggestion that Article 125(1) should be read with Article 40(2)(d) further consolidates the meaning derived from the literal interpretation of Article 125(1).

However, I would like to ask if it is not possible for a unified or contextual approach be used to construe the meaning of Article 125(1)? This approach whereby, (to quote Professor Driedger in his book, The Construction of Statutes), “... the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intent of the Parliament” is a combination of the traditional rules of statutory interpretation.

If we were to take such an approach, would it not then be appropriate for us to consider Article 122B(1) of the Federal Constitution which states inter alia that the appointment of the chief justices shall be made by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting with the Conference of Rulers?

Can it not be argued that, since the appointment of a chief justice would require the Yang di-Pertuan Agong to act on the advice of the Prime Minister, this requirement would also apply with regards to the extension of tenure of the Chief Justice after his retirement?

In this case, the statement by Law Min-ister, Datuk Sri Mohd Nazri that a constitutional monarch must necessarily obtain advice from the prime minister before ex-tending the tenure of a chief justice after his retirement should be duly considered.

On closer inspection of the phrase “as the Yang di-Pertuan Agong may approve” in Article 125(1) of the Federal Constitution, one would note that this phrase does not define the method or way in which the Yang di-Pertuan Agong should go about in granting an extension of the Chief Justice’s tenure after his retirement. Must Article 125(1) be, as Karpal Singh suggested, necessarily read together with Art 40(2)?

I am certain that there are many ways by which this issue can be approached. I hope that more experts in the legal field will further discuss this issue.